General Immigration

11/17/2009

The Department of Homeland Security
(DHS) has clarified that employers who fail to comply with applicable
immigration law will face severe consequences. Just yesterday, on
November 19, DHS sent out a notice that it intends to audit 1,000
additional employers. This notice, of course, is in addition to the one
sent out in July of this year. In that notice, 654 employers were
informed that their I-9 forms would be inspected. Those earlier
inspections, thus far, have yielded the following results:

1. ICE agents reviewed more than 85,000 Forms I-9 and identified more than 14,000 suspect documents—approximately 16% of the total number reviewed thus far.

2. To date, ICE has issued 61 Notices of Intent to Fine, resulting in $2,310,255 in fines.

<3. ICE continues to review 267 cases,
with the options of fining those companies or even referring egregious
violators for criminal prosecution.

4. ICE closed 326 cases after the
businesses were found to be in compliance with applicable immigration
laws or after they were served with Warning Notices in expectation of
future compliance.

In addition to the dramatic increase in
I-9 inspections, DHS has established the Fraud Detection and National
Security Division (FDNS). With nearly 600 officers, and with over $90
million dollars in funding (arising from the $500 fraud detection fees
for each initial H-1B or L-1 petition), FDNS has announced its plans to
inspect over 25,000 employers (up from just over 5,000 in fiscal year
2009). FDNS has already begun to dispatch officers to worksites
throughout the United States. In these onsite visits, the officers ask
to meet with human resources personnel and employees to evaluate whether
the H-1B employees work at the company, receive the wages outlined in
the nonimmigrant visa petition and labor condition application, and
perform the precise duties outlined in the petition. In the event that
discrepancies are discovered, the visiting officer will make a finding
of fraud and refer the case for further investigation. Because the
consequences for visa fraud are extreme (with a potential of up to 10
years per violation), employers will need to be sure they are taking
appropriate steps to comply with all aspects of the visa process for
their H-1B and L-1 employees.

Finally, not to be left out, the
Department of Labor (DOL) has also begun to increase its investigation
of Public Access Files (PAFs). These PAFs are required for each H-1B
petition. Employers who fail to maintain their PAFs properly will face
the possibility of backpay to
H-1B workers (and sometimes similarly employed American workers), civil
money penalties of up to $1,000 to $35,000 per violation,
disqualification from the immigration benefits process, and, of course,
criminal prosecution in extreme cases.

In light of these developments in
immigration enforcement, the time has come for employers to establish
effective compliance programs. All employers must have effective I-9
verification procedures and compliance programs in place. And the
employers who rely upon foreign-born labor, using the H-1B and L-1 visa
programs, will need to ensure that they have developed and implemented
effective compliance measures to prepare for the likelihood of FDNS
onsite visits and DOL audits.

08/27/2009

USCIS announced that the Office of Management and Budget has
extended its approval of Form I-9 (Employment Eligibility Verification)
to Aug. 31, 2012. Consequently, USCIS has amended the form to reflect a
new revision date of Aug. 7, 2009.

Employers may use the Form I-9 with the revision date of either Aug.
7, 2009 or Feb. 2, 2009. The revision dates are located on the bottom
right-hand portion of the form.

For more information on USCIS and its programs, or to obtain Form I-9
and the Handbook for Employers, see the corresponding link to the right
under "Related Links" or by calling the toll-free forms line at (800)
870-3676.

USCIS forms and information on immigration laws, regulations, and
procedures can also be requested by calling the National Customer
Service Center toll-free at (800) 375-5283.

08/26/2009

With
new enforcement authority, the U.S. Department of Labor, Wage and Hour
Division issued Field Assistance Bulletin No. 2009-2 on August 21, 2009
concluding that in the context of the H-2B temporary non-immigrant visa
program, all travel and visa costs are incurred for the primary benefit
of the employer. Therefore, the employer must reimburse those costs in
the first workweek to the extent that they reduce the employee's wages
below the minimum wage.

The
Department of Homeland Security delegated to Wage and Hour enforcement
authority to ensure that H-2B workers are employed in compliance with
the H-2B labor certification requirements. Wage and Hour issued
regulations implementing this authority, 29 C.F.R. Part 655, which
became effective on January 18,2009.

03/12/2009

A provision in the “Fiscal 2009 Omnibus Appropriations Bill,” H.R.
1105, signed into law on March 11, 2009, has extended the Immigrant
Investor Pilot Program through September 30, 2009. Of the 10,000
investor visas (i.e., EB-5 visas) available annually, 3,000 are set
aside for those who apply under a pilot program involving a
USCIS-designated "Regional Center."

A "Regional Center:"

Is an entity, organization or agency that has been approved as such by the USCIS;

Focuses on a specific geographical area within the United States; and,

Demonstrate that a "qualified investment" of $500,000 is being made
in a new commercial enterprise located within an approved Regional
Center; and,

Show, using reasonable methodologies, that 10 or more jobs are
actually created either directly or indirectly by the new commercial
enterprise through revenues generated from increased exports, improved
regional productivity, job creation, or increased doemstic capital
investment resulting from the pilot program.

USCIS will continue to receive, process, and adjudicate all Regional
Center Proposals and Forms I-526, Immigrant Petitions by Alien
Entrepreneur, and Forms I-485, Applications to Register Permanent
Residence or Adjust Status, affiliated with Regional Centers relying on
“indirect” job creation analysis and the $500,000 investment threshold.
Currently, there are 45 regional centers throughout the United States.

A provision in the “Fiscal 2009 Omnibus Appropriations Bill,” H.R.
1105, signed into law on March 11, 2009, has extended the Immigrant
Investor Pilot Program through September 30, 2009. Of the 10,000
investor visas (i.e., EB-5 visas) available annually, 3,000 are set
aside for those who apply under a pilot program involving a
USCIS-designated "Regional Center."

A "Regional Center:"

Is an entity, organization or agency that has been approved as such by the USCIS;

Focuses on a specific geographical area within the United States; and,

Demonstrate that a "qualified investment" of $500,000 is being made
in a new commercial enterprise located within an approved Regional
Center; and,

Show, using reasonable methodologies, that 10 or more jobs are
actually created either directly or indirectly by the new commercial
enterprise through revenues generated from increased exports, improved
regional productivity, job creation, or increased doemstic capital
investment resulting from the pilot program.

USCIS will continue to receive, process, and adjudicate all Regional
Center Proposals and Forms I-526, Immigrant Petitions by Alien
Entrepreneur, and Forms I-485, Applications to Register Permanent
Residence or Adjust Status, affiliated with Regional Centers relying on
“indirect” job creation analysis and the $500,000 investment threshold.
Currently, there are 45 regional centers throughout the United States.

09/26/2008

The United States and Ireland soon will begin to implement a
Twelve-Month Intern Work and Travel Pilot Program for post-secondary
students or young people within twelve months of graduation. The new
program is an innovative exchange program that will allow thousands of
young people from Ireland to enter the United States for a period of
twelve months on a J-1 exchange visitor visa. There also will be
reciprocal opportunities for young people from the United States to
travel to Ireland. This will allow students from both countries to
participate in a variety of internships, and to travel independently
within the United States and Ireland.

The program will be coordinated by the private sector under the
auspices of the U.S. Department of State’s Bureau of Education and
Cultural Affairs, and falls under the Intern Category of the Exchange
Visitor Program. This program is set to be launched in late 2008 or
early 2009. Further details and prerequisites on the program will be
available from the U.S. Embassy in Dublin and Ireland’s Embassy in
Washington, DC.

06/03/2008

The Department of Homeland Security has issued an Interim Final
Rule, establishing a new online system called Electronic System for
Travel Authorization (ESTA), that will require citizens of Visa Waiver
Program (VWP), countries to obtain approval prior to boarding a carrier
to travel by air or sea to the United States. ESTA approval only
authorizes a traveler to board a carrier for travel to the U.S. under
the VWP. In all cases, Customs and Border Patrol officers will make the
final admissibility determination at the port of entry.

ESTA applications may be submitted at any time prior to travel to the
United States, and VWP travelers are encouraged to apply for
authorization as soon as they begin to plan a trip to the United States.
If applicants’ destination addresses or itineraries should change after
their authorization has been approved, they may easily update that
information through the ESTA website.

Travelers will log on to the ESTA web-based system and complete an
application online providing the biographical and eligibility
information currently required on the paper I-94W form. The ESTA
web-based system will be available for voluntary applications after Aug.
1, 2008.

In most cases, ESTA will provide an almost immediate
determination of eligibility for travel under the VWP. Possible
responses include: Authorization Approved, Travel Not Authorized, or
Authorization Pending. An approved ESTA travel authorization is: valid
for up to two years or until the traveler’s passport expires, whichever
comes first; valid for multiple entries into the U.S.; and not a
guarantee of admissibility to the United States at a port of entry.

Once an ESTA application has been successfully completed and
submitted online, the application will be queried against appropriate
law enforcement databases. ESTA application data will remain active for
the period of time that the ESTA authorization is valid. DHS will
maintain this information for an additional year, and then will archive
the information for twelve years to allow retrieval of the information
for law enforcement and investigatory purposes.

On Aug. 1, 2008, DHS will begin to accept voluntary ESTA applications through the ESTA Web site: https://esta.cbp.dhs.gov
Initially, the website will be operational in English only, but
additional languages will be available no later than Oct. 15, 2008.

Travelers are not required to have specific plans to travel to the
United States under the VWP before they apply for anESTA authorization.
DHS recommends that an ESTA approval be obtained as soon as a VWP
traveler begins to plan a trip to the United States, and no later than
72 hours before departure. ESTA has, however, been designed to allow for
the accommodation of last minute and emergency travelers.

Disclaimer

The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.

This blog discusses the frequently changing area of immigration law as it affects employers - covering new regulations and policy changes affecting employers' ability to transfer, hire and retain workers; and recent developments in employment eligibility and verification programs.